There has not been much activity on the blog because we have been engaged in a long copyright and misappropriation of trade secrets trial.  So, we share with you some of the articles we have been reading, but just haven’t had time to write about:

Bloggers entitled to same protections as journalists under the First Amendment.  The Ninth Circuit recently applied libel defense protections normally reserved to the “institutional press” to bloggers reasoning the First Amendment applies to all citizens and there has been a blurring of the lines between who and who is not a journalist.  You can read more about this important decision here.

We have our first Twibel verdict – no defamation in 140 characters.  In three hours, the jury returned a defense verdict saying Courtney Love did not libel her lawyers with a tweet that suggested her prior lawyers had been “bought off.”  The bad news is that during the trial Love stayed off of Twitter, and now, she is apparently back.  More here.

Yelp ordered to disclose identity of reviewers.  A court ordered Yelp to review the identify of seven “anonymous” reviewers who criticized a dry cleaning business in Virginia. The business claimed the reviews are fakes and do not match any of their records.  This is another example of how courts are trying to balance the interests of anonymous speech and a plaintiff’s right to combat defamatory speech.  More here.

Parents take to the court to combat cyberbullying.  Locally, there has been a lot of attention about a lawsuit filed by one set of parents against seven minors and their parents for libel and negligence.   More here.

Will there be more transparency regarding government requests for online data?   The Justice Department is relaxing the rules for technology companies like Google and Microsoft to disclose, in broad terms, the number of requests these companies receive from the government and the amount of data provided.  Tech companies have long reported the number or requests from state and non-national security related requests from the federal government, but this will be the first time they can release general information related to national security letters.  If the numbers are surprising, this could lead to even more push back against the government surveillance programs.  More here.

Supreme Court to consider online re-broadcasting case.  The U.S. Supreme Court will weigh in on the rights to re-transmit broadcast programs via the internet.  Aereo receives over the air broadcasts the old fashion way in a warehouse and then sends them to paid subscribers devices.  The broadcasters are arguing that Aereo is violating the “public performance” copyrights to the programming.   Aereo says what they are no different than the users receiving the digital signals on their own devices.  Both sides wanted guidance from the high court and this is one worth watching.  More here.

No one likes to be sued.  It may make you mad enough that you want to scream and holler on the Internet.  There is a reason, however, a lot of lawyers recommend not commenting on personnel issues and pending litigation.

Take a lesson from Coyote Ugly that does not involve dancing on the bar.  The lesson is — don’t go to the Internet to rail on your former employees when they file a Fair Labor Standards Act minimum wage case against you.

About a month after a group of employees filed suit against the Coyote Ugly Saloons, the president of the chain of Coyote Ugly Saloons went to her “Lil Spill” blog and wrote:

This particular case will end up pissing me off[,] cause it is coming from someone we terminated for theft. I have to believe in my heart that[,] somewhere down the road, bad people end up facing bad circumstances!

I have been reading the basics of Buddhism[,] and am going to a class on Monday. The Buddhist way would be to find beauty in the situation and release anger knowing that peace will come. Obviously, I am still a very new Buddhist[,] cause my thoughts are “[f***k] that [b**ch.]” Let me do my breathing exercises and see if any of my thoughts change. Lol .

A slightly different take then, say, Warren Buffet may have taken.  The subject of the post had already been reinstated by the time the blog post was published.

To add to the fire, a supervisor allegedly posted on Facebook when drunk about another plaintiff who was still employed but had joined the suit:  “Dear God, please don’t let me kill the girl that is suing me . . . . that is all . . . .”

The result of these diatribes was a retaliation claim in addition the underlying minimum wage claims.  The federal district court in Tennessee recently allowed both claims to continue.  You can read the opinion here.

I am not an employment lawyer, but I know enough to warn clients you can almost get into more trouble for retaliating against an employee for making an overtime, workers’ compensation, minimum wage, harassment or discrimination complaint than you can for the underlying complaint.  My colleague Michael Kelsheimer has written on retaliation on his Employer’s Handbook blog.

The emedia law lessons seem almost too obvious.  I’ve never thought to add “don’t let your supervisors post to about your employees while drunk” to my social media policies.  The real lesson is to train your employees and have policies.  Considering the founder was the first to take to the Internet, I’m not sure there was much respect for policies or compliance.  Your business, I am guessing, is probably different.  You should have policies and plans in place regarding who can say what about pending claims and what is and is not appropriate to do on the Internet.


Social Media is becoming pervasive in today’s society. This CLE looks at how it intersects with legal issues crossing a broad spectrum of specialty areas to give all practitioners the information they need to be aware of the special risks and issues social media presents. Our speakers will look at how it affects brands, defamation for individuals and businesses, the new area of evidence and investigative tools social media presents and the ethical issues it presents for lawyers. Oh, and we will be having a beer too.

Thursday March 28, 2013
2:00-5:00 p.m.

Buffalo Bayou Brewing Company
5301 Nolda Street
Houston, Texas 77007 


Brand Protection in the Online Space
Aparna Dave, Senior Counsel – Intellectual Property, Wells-Fargo




Evidence and Investigation In an Online World
Jana Woelfel, Strasburger & Price, LLP



Defamation and Privacy Online
Katie Sunstrom, Lorance & Thompson, PC



Ethics of Lawyers on Social Media
Travis Crabtree, Member, Looper Reed & McGraw, P.C.



3 hours of CLE including .75 hours of ethics

$200 per person ($150 Early Bird Special for those who register prior to March 8th)

More Information or to RSVP.


Here are a few tips and rules about using images on your blog or website. Not only is simply copying something from the web a moral issue, it can get you into legal trouble.

Don’t Copy and Paste

Yes, the image is on Google Images.  Yes, it would be easy to cut and paste and it fits with the topic of your post.  But, just because it is on Google images, doesn’t mean it is free game.  You don’t have to file something with the copyright office or attach the © for the image to be copyrighted.  Bloggers like to brag about their social media prowess and not wanting to upset them.  Photographers are often the same way and they come to the defense of their own.

Stock Photo Services

There are websites that offer photos for your use at a relatively cheap price.  You can purchase some of the “royalty free” which means  once you purchase them, you to use them as many times as you like in as many mediums as you like. 

You may also find “royalty managed photos.”  These are photos you purchase for a specific period of time and a specific type of use.  You might be purchasing a photo for the home page of your website for one year.  Or, you might be purchasing a photo to include as stock art in the October issue of a magazine you produce.  These photos are usually very high quality and usually high in cost.   If you use one of these, you need to make sure to calendar when the license is up so you can remove the image. Otherwise you are at risk for paying additional fees for the period the image is left up.  If you repeatedly use the image in a number of mediums you could be at substantial monetary risk.   

Also be careful if you hire someone to design or post content to your blog or site.  They may have paid for the initial use, but let the license lapse.  This has happened to many a website owner.  Eight years later, you get sent a bill for the six years you have used the image on your site without permission. 

The Creative Commons License

Just because something is subject to a Creative Commons License, you need to dig a little deeper into exactly what kind.  For example, photo sharing site Flickr describes five different types of creative commons licenses.  Just take a minute and follow the rules applicable to each one. 

What about Watermarks?

Some photos contain watermarks to prevent their wide-spread use.  Some people really want to use the image and digitally remove the watermark.  Bad idea.  Not only are you liable for the value of the image, you are definitely looking at enhanced statutory damages and fees.  Don’t remove or crop them out. 

Can You Digitally Manipulate Purchased Photos?

You should always read the fine print in the contract but typically once an image is purchased you have the rights to edit and manipulate that image as you desire. 

Can you digitally manipulate an image and then claim it as your original?

Some people believe that If you take an image from the web and alter it enough, you create an original work not in violation of the original copyright holder.   You would be drawing a fine line between a transformative work (which means you have altered it enough to make it your own) and a derivative work (which means you have not altered it enough and the original owner still has the rights).   This is a factually-intensive issue, so if you need to consider it more, check out Peggy Hoon’s Collectanea post on “Making Sense of Derivative Works, Transformative Uses and Fair Use.”   For a real world example,  check out the story about the lawsuit over the iconic image of President Obama.   

What about Fair Use?

How much time do you have?   See above for both the more detailed link and the use of the President Obama images.  Because we are talking about the news value of the images, it likely involves fair use.

When in doubt ask

Don’t assume photos are free.  If you have any doubt, just ask.  Just as important, keep that email as proof.  Even if technically you did not get permission from the right person, you will show you made a good faith effort and avoid any willfull infringement finding which can make you liable for statutory penalties and attorneys’ fees.

Use your own

I try my best to use my own photos when I can, or simply show the symbols of the companies I am referencing.  My images often focus on my kids.  They will only be cute for a few more years before they turn into teenagers so I might as well take advantage of it while I can.  Otherwise, I will have to pose the family pet into ridiculous poses. 

 Special thanks to Michael Blachly, Looper Reed’s Director of Client Development and talented photographer for the idea and some content.  Maybe he will let me use one of his images in the future.

Federal agencies are not shy about enforcing alleged violations of their policies after the fact.  From these enforcement actions, lawyers are supposed interpret the results to advise their clients on how to avoid the same fate. 

In the past, the NLRB even summarized some of the cases for us in its second report on social media in the workplace.  This week, the NLRB went a step further and actually told us what we should and should not include in social media policies.  You can read the NLRB’s third report issued on May 30, 2012, here.

According to the report, companies need to consider whether their social media policies “would reasonably be construed to chill” the employees’ rights to discuss with each other their working conditions.  

What not to include

The NLRB believes this broad right, applicable to union and non-union employees alike, makes certain run of the mill social media provisions overly broad such as a policy that forbids employs from sharing “confidential guest, team member or company information.”

The NLRB also frowns upon policies that require the employees to only include information that is “completely accurate and not misleading and that they do not reveal non-public information on any public site.”

You also should not include language in your policy that prohibits employees from posting “offensive, demeaning, abusive or inappropriate remarks.”

Warnings to “think carefully” before connecting with colleagues is overly broad.  

To my chagrin, the NLRB even frowned upon policies that restricted employees from discussing the company’s legal matters. 

All of these no-no’s could be construed to prevent employees from discussing the terms and conditions of their employment with each other which is unlawful.  

So, what can I have in a policy?

Here are some of the acceptable examples:

“You are solely responsible for what you post online.”

“Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance,…may result in disciplinary action up to and including termination.”

What we use

For informational purposes only and not specific legal advice that you can rely upon or that establishes a lawyer-client relationship because each situation is unique (aren’t lawyers fun people to hang out with?), here is the language we usually start with:

You are responsible for any information you post online.  Any online behavior, including that done during non-work hours, that unnecessarily casts the Company in a negative light or that adversely impacts the Company environment of teamwork will ultimately be your responsibility and may be the basis for discipline by the Company.  Some examples include, but are not limited to, any vulgar, obscene or disparaging comments about the Company, its employees or customers that do not address the terms and conditions of your employment. 

Hopefully, this starting point passes muster and success means it will never be tested.

[Updated 6-4-2012] Is the NLRB going too far?

Not everyone agrees with the NLRB’s position suggesting the NLRB is addressing conduct outside of its purview.  Looper Reed employment law attorney and The Employer Handbook creator Michael Kelsheimer says, “after chastising and punishing businesses for their social media policies over the last several years, the NLRB has finally provided some guidance to businesses on what is acceptable for a social media policy. Unfortunately, the NLRB’s guidance severely cuts into an employer’s ability to stop conduct that really is not protected by the NLRA and could violate other laws such as Title VII.”

One of the most popular discussions in the area of social media law centers on social media policies.  A simple Google search will produce plenty of examples.  Some people think you simply copy and paste one of these examples and change the company name to your own.  Then, you can check the social media policy off the list and move on to the next thing.  There is even a site with an online database of social media policies.

Before you implement a policy, or take the shortcut, rather than asking yourself if you need one or whose you should copy, you should ask yourself “Why?”

As a lawyer, the obvious answer is risk mitigation.  Can I reduce or completely avoid risks with a social media policy?  Yes, if you have a policy and apply it, you can do some of that.  If you check it off and then ignore, you may actually expose yourself to more liability.  That is why the policy should be just as much about why as what.  Doing it as an item to check off of a list of things to do is not going to motivate your team to follow it.

coca-cola.pngBy way of example, the Coca-Cola Company has a good social media policy.  They actually call it their Online Social Media Principles.  You can review it to get started or for some ideas.  I do the same.  I don’t cut and paste it.  Having spoken with one of their lawyers about this policy, it was a team effort.  Legal was one part of it, along with management, HR, product development and others.  Based on other conversations, it is that way with Hewlett Packard as well with their Blogging Code of Conduct.

I am guessing you are not Coca-Cola or HP and have different issues.  Not to get too esoteric, but like most things in life, the success of a social media policy depends largely on the motivation for doing it. 

Are you trying to encourage your team members to get involved in social media and promote your company?  Can they do it while at work?  Are you a company that thrives on discretion and that is the last thing you want?  Are you focused on products?  B2B?  B2C?  Services?  Do  you have designated spokespersons and official social media channels?   Do you already have  a personnel manual that should be incorporated into your social media policy? 

I’m a lawyer that drafts social media policies, so yes, legal is important.  In one case, the Federal Trade Commission cited to the fact the company had a social media policy as part of the justification for dismissing an investigation about unlawful online endorsements.  Social media raises certain legal issues that should be addressed and legal has a role in all of these.  Your policy, however, will only be successful, if the key players buy in.   

Lawyers rely upon case law and statements from regulatory agencies to advise clients on what they need to do to prevent from having their name in the case books setting the precedent.  Without precedent, a lot of us are just doing our best job of reading statutes and regulations.  That’s why there was so much buzz about the Federal Trade Commission’s first action related to the FTC blogger endorsement rules against Ann Taylor’s Loft.  I discussed that case here when it came out.  

One of my biggest issues with that action was that it seemed like the FTC was applying different rules to online versus traditional media.  Just because the coverage about the event where freebies where provided was covered online, there was an action.  Did the traditional press get any freebies?  I can tell you from my own days as a poor starving journalist, you serve me food, I will likely come cover your game.  Half of my meals came from the University of Iowa covering games I would have covered anyway.

Now, the FTC has taken their second action and this one seems more like what the FTC should be focused on.   This time a PR firm was having their employees post reviews or comments on iTunes saying glowing things about the PR firms’ clients.  

In In re Reverb Communications, FTC No. 092-3199 (Aug. 26, 2010) (Settlement), the FTC obviously said this was a no-no.  According to the complaint, the PR firm employees used innocuous usernames promoting the items and would receive a percentage of sales without any disclosure of this relationship.  

Pursuant to the settlement, Reverb has to stop doing this, remove any paid endorsements already out there, keep documents for five years to prove compliance and deliver the settlement to all their employees.  

The interesting part is that Reverb did this before the new guidelines were issued by the FTC.  You have to remember the guidelines are not new law.  Rather, they are an interpretation of existing law as it applies to online behavior to put businesses on notice.

Also of note is the fact the FTC did not go after the PR firm’s clients like they considered in the Ann Taylor case.  There is no discussion in the press release or the settlement as to whether the PR firm’s clients knew of the conduct.  If so, it seems like they could be held accountable too.  In updated guidelines, the FTC made it clear it was coming after the advertisers and not necessarily the bloggers.  If you have a PR/marketing firm, you need to make sure they are not doing fake reviews.

In a previous post, I wrote about the terms and conditions you need in your pay-per-click marketing contracts. Now, we look at the ways you can protect yourself when you embark on social media and mobile marketing campaigns.


Your level of involvement as a marketing professional with your clients dictates your level of concern and the length of your contract. If you merely help set up the Facebook page, blog, LinkedIn Company profile or Twitter account, then make sure you limit your liability to that level of involvement. The last thing you need is a renegade employee of the client using the account you set up to create unwarranted liability for you.

The best practice, therefore, is to spell out your involvement in the contract. For example, specifically state: “Client acknowledges and understands Marketer will consult with Client on social media marketing and may set the Client up on various social media platforms such as Facebook, YouTube and Twitter, but Client remains solely responsible and liable for all content and the management of any such sites.”

You can also limit your liability through an indemnification from the client. Indemnification generally requires the customer to defend you should you ever be named in a lawsuit because of the work you are doing. It generally also requires the customer to pay any judgments against you. Of course, if your client cannot afford to defend you or pay any claims, you will be on your own.

You should nevertheless include indemnity language such as: “Client hereby represents and warrants the truth and veracity of the content and information provided to Marketer for the delivery of the services described herein. Client agrees to indemnify, defend and hold harmless the Marketer from, against and with respect to any claim, liability, obligation, loss, damage, judgment, cost or expense, including reasonable attorney’s fees suffered or sustained by the Marketer, (i) arising out of or relating to any breach or default by Client under any representation, warranty, covenant or other provision of this Agreement, and (ii) any negligence of Marketer. Should content be posted on any site directly by Marketer, Client agrees to indemnify, defend and hold the Company harmless for any and all claims related to such actions in the broadest form allowed by law. The sole remedy for Client should any erroneous or damaging information be posted on any websites directly by Marketer shall be removal and editing of the material and there shall be no economical recovery for such actions.”

This provision attempts to make the customer responsible for any liability that arises as a result of the content of the social media marketing campaign. It also attempts to limit your liability to the client should they try to sue you. Because the laws are different in each state or jurisdiction, the enforceability of such a provision is not always certain. You should consult with a legal professional to cater language specific for your needs and your jurisdiction. Including such provisions is not a guarantee to keep you out of trouble, but I would much rather defend a client with this in their contract than a client without it.


First and foremost, mobile marketers must accept it is an opt-in medium. Documenting consent from customers should be priority number one. As an outside consultant, you should either contractually require the client to do that or closely monitor the mobile marketing efforts yourself. If you are merely setting up the platform or consulting while the client executes the plan, your contract should require the client to warrant and represent that they are not in violation of any laws or regulations and they are responsible for maintaining all records and processes for ensuring their program is opt-in. Merely accepting the client’s statement that certain customers on a list have already opted in can create problems if you execute the mobile marketing strategy for them.

For those new to mobile marketing there are groups such as the Mobile Marketing Association and the DMA that provide self-regulatory guidelines. Otherwise, your program could run afoul of Federal Trade Commission, CAN-SPAM, state deceptive trade practices acts, Do-Not-Call Rules, the Telephone Consumer Protection Act of 1991, Customer Proprietary Network Information rules and marketing to minors concerns such as the Child Online Privacy Protection Act. Doing sweepstakes, contests or offering prizes opens a whole new slew of issues.

While the minutia of all of the applicable rules is too detailed for this blog, many problems can be avoided if the consumer voluntarily opts in and no avarice is used to obtain that consent. Setting the opt-in provision for mobile marketing from your traditional website as the default is frowned upon. You should have clear and conspicuous disclosures and make it easy to opt out of unwanted mobile marketing.

Once permission is granted, all cost issues must be clearly disclosed at one time in a prominent fashion. The Federal Trade Commission has already prioritized cost disclosures, unwanted calls and marketing to children. Given the limited screen space, there is some debate right now whether a majority of the disclosures can be embedded in a link. At this point, I would recommend that if it has to do with charges associated with the message and the ability to opt out, it needs to fit somewhere on your initial message. Let us lawyers stick all of the other legal gloppity-gloop in a link.

It’s been several months since the Federal Trade Commission established rules requiring bloggers to disclose any gifts or graft they may have gotten from the companies they are blogging about.  The initial announcement created quite a stir and there is still a lot of uncertainty about the rules.  The FTC’s recently-published guidelines help.

It seems to me the FTC rules concern in-house counsel more than anything else about social media.  Computer Maker Company decides to get on the social media bandwagon, establishes its own blog, creates a Facebook page and asks its employees to participate.  Well, when the employees post on the Facebook Fan page, do they have to disclose they are employees?  After all, they are getting paid for their services, although they are not getting any extra compensation to make posts.  Let’s say you give the newest laptops to all of your sales force.  Does the company have to know if any of the sales staff have personal blogs so they can make sure they aren’t “endorsing” the company’s products without fully disclosing the fact the computer was given to them or that they are company employees?

Because lawyers are naturally risk-adverse, it is these issue that keep them up at night.  Rather than reading broad guidelines from the FTC, lawyers want to know what has already happened and what did the FTC do about it.  Thanks to Ann Taylor Loft, now we know. 

Return to LOFT homepageHere is the official announcement about the closing of the investigation.  It all started when Ann Taylor threw a party to preview their summer clothes.  Bloggers (not sure if they were singled out or if everyone in attendance) were given gifts.  Apparently, not every blogger disclosed the fact they were given gifts when they wrote about the party and/or the summer collection.

The FTC dropped the investigation citing the fact this seemed to be an isolated incident, there was only one party, only a few people posted about it and some of them made the disclosure, Ann Taylor had a written blogging policy (albeit after the fact) and there was a sign at the event reminding bloggers to make the disclosure.  On the other hand, the FTC clearly put the onus of compliance on the advertisers and not the individual bloggers.  You can read more about it from Ad Law By Request and Professor Goldman and Chris Vail.

So what is the takeaway?

1.Have a written policy that covers both targeted efforts with outside bloggers and for your employees to address the questions raised above.

2.Anytime a gift is sent to a blogger, include a written reminder of the notice requirements in the package.

3.Use some effort to monitor bloggers you know have received something of value who are blogging about your products.

4.There are programs that provide shorthand disclosure notices for folks concerned about the limitations of Facebook and Twitter. is just one example.

5.Know the FTC is watching.  This was a small event that resulted in only a few posts.

I am usually an advocate of less regulation online, but I would not have minded if the FTC would have really come down and simply shut Ann Taylor and Ann Taylor LOFT down for good.  It’s not because I think they were deceitful or did anything wrong here.  After all, don’t you think the traditional press that covers similar events comes away with at least a gift bag or something?  It’s because my wife simply shops there too darn much.  If that is an indirect endorsement from my wife, I can assure you I am not receiving any payments from Ann Taylor.  I will, however, gladly disclose it if they choose to take care of my credit card bill.